The
Arlington County government has enacted a “Continuity of Government” ordinance
to help it address the emergency presented by the COVID-19 epidemic.
All
levels of American government need and have emergency powers. How, when and
where government exercises those powers is a test of leadership. Will the
government overreach, underreach, or get it right?
The
Arlington County government’s response to the COVID-19 epidemic has displayed
all three types of responses. There are many respects in which our government has gotten it
right during this emergency. Expanded efforts to provide food to the hungry and
deferral of the opening and operation of the Aquatics Center and Lubber Run
Community Center are two examples. The Manager’s decision to postpone until
2021 the adoption of a 10-year Capital Improvement Plan (CIP) is another good
decision.
But, in a number of other respects, our government has either
overreached or underreached.
Overreach
A
conspicuous example of overreach was the hastily-retracted effort by County
government to use its consent agenda to try to enact an ordinance amendment
that would have shut down several important aspects of Arlington’s long-range
planning functions. As the Arlington Sun-Gazette explained, several eagle-eyed
citizens and groups like the Urban Forestry Commission and Arlingtonians for
Our Sustainable
Future spotted the proposed amendment, raised an outcry, and forced the amendment
to be deleted:
“But
concerns indeed were raised, largely over a provision that potentially would
have shunted aside the county government’s Long-Range Planning Committee and
various review committees that consider the implications of new development.
“‘Proposing
such overreach, especially opportunistically so during a deep public-health and
economic crisis, favors those who most profit from land development above the
public’s interest and fairness and transparency in government operations,’
local resident Rod Simmons said in an e-mail to County Board Chairman Libby
Garvey. ‘It would effectively disenfranchise meaningful and required public
participation in guiding land-use decisions… .’
“County
officials got the message, removing that proposal from the emergency-powers
declaration as it moved toward a final vote on May 19.”
Some
residents continue to have justifiable concerns about the ordinance as it
stands after that final vote. For example, local civic activist Suzanne
Sundburg wrote to the County Board on May 19, noting in part:
“The overly broad language
of the ordinance makes it very difficult for the public to know precisely how
broadly the County Manager may interpret his new powers to “temporarily suspend enforcement of existing provisions of County
ordinances and conditions in use permits and special exception site plans” and to “temporarily modify or suspend application
of administrative processes and procedures and other requirements. …
“Moreover, there appears to be no meaningful process or mechanism
for the public to dispute or appeal the County Manager’s decisions in a timely
fashion, even though the manager may be forced to grant relief that is
unwarranted in certain cases simply because it falls into the same category as
a decision legitimately made in another case.”
Other examples of County government overreach during the pandemic
include the now retracted decisions to:
- prevent County residents even from entering and passively using
County parks
- banning open-air farmer’s markets entirely
Underreach
“The phrase ‘Alphonse-and-Gaston routine,’ or ‘Alphonse-Gaston Syndrome,’ indicates a
situation wherein one party refuses to act until another party acts first.”
One
of the glaring examples of underreach in governmental use of its emergency
powers relates to mandating the use of masks. In this instance, the federal,
Virginia, and Arlington County governments all have been too halting and too timid.
At
the federal level, it took the CDC far too long to develop its guidelines
on the use of masks. But once the CDC finally did so in early
April, both Governor Northam and the Arlington County government ought to have immediately
seized the initiative and exercised their existing emergency powers to
promulgate carefully tailored guidelines for when, where and how to mandate the
use of masks. Both Virginia and Arlington bungled this leadership test.
Almost two months (!) after the CDC
acted, Virginia finally announced
on May 26 that it was going to mandate the use of masks effective May 29:
“The governor announced Tuesday that
masks will be made mandatory in indoor public spaces, including businesses,
starting Friday. The state’s mask requirement will have some exceptions,
including for eating, children under 10, and those with health conditions that
prevent them from wearing a mask.”
Better late than never for Governor Northam, I suppose. But
Arlington could have issued a similar mandate in mid-April. Why did Libby
Garvey play Alphonse to Ralph Northam’s Gaston? We may never know for sure, but
one likely explanation is poor legal advice from the Arlington County Attorney
based on his erroneous belief that the Dillon Rule prevented Arlington from
acting on its own. If that is the reason, it’s wrong. In a health emergency
like the present one, Arlington could have acted in April to enact an ordinance
mandating mask usage under circumstances similar to those Northam has now
belatedly enumerated. And if the poor legal advice from the County Attorney is
not the reason for Arlington’s inaction, then Arlington’s failure to act lies solely
in the laps of the County Board.
All the County Board did in the meantime was to decide
to offer
free masks. Board member Katie
Cristol said “the idea … was to encourage rather than mandate mask usage—a
carrot vs. stick approach.” That approach was wrong. The Board in April should
have offered both a carrot and a stick approach to wearing masks.
Conclusion
Arlington holds itself out as making “world class” decisions. In
the overreach and underreach examples described above, Arlington has failed to
meet its own self-proclaimed standard of excellence.
